Jan 21 - 48-Page Brief

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Date: 05/25/11Time: 9:00 AM

IN THE MUNICIPAL COURT OF THE CITY OF SEATTLE

CITY OF SEATTLE

Plaintiff,

vs.

LEONARD BLATT,

Accused.

NO. 565314

DEFENSE MOTION TO SUPRESS (CrRLJ 3.6)

I. MOTION

COMES NOW the accused, Leonard Blatt, in propria persona,

and moves this Court to suppress all evidence taken subsequent

to his and Harmon Weitzman’s unlawful seizure by SPD officers

at 21:35 HRS on January 21-22rd, 2011. This includes all

evidence taken when police trespassed upon Harmon’s rented,

private, secured, underground parking garage.

This motion is based on the record and file in this cause,

Article I, Section 7, of the Washington State Constitution,

Criminal Rule (CrRLJ) 3.6, discovery supplied by the

prosecution, testimony to be presented at the time of hearing,

and the Memorandum of Authorities in support of this motion.

DEFENSE MOTION TO SUPRESS (CrRLJ 3.6) 1

The Enlightening Bolt Project for Defense against Lawless State Action

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For purposes of this motion, Blatt will rely on undisputed

facts.

Mr. Blatt further moves this court to allow live testimony

and presentation of this evidence in support of this motion.

Mr. Blatt anticipates that the evidence presented at a hearing

on his motion may not be consistent with the facts originally

reported by police. If so, it may be necessary to submit

supplemental briefing.

II. FACTS

The defense expects to elicit the following facts at the

motion hearing:

Wife threatens husband and child

On the evening of January 21, 2011, Leonard Blatt was

visiting his friends, Harmon Weitzman (“Harmon”) and his two

year old daughter, Zoe, in their Seattle apartment.

During this visit, Harmon’s estranged wife, Jennifer

Weitzman, and Harmon had several phone conversations. Harmon

switched his cell phone to speaker, enabling Mr. Blatt to hear

the conversations. Mr. Blatt heard Jennifer threaten violence

against Harmon and Zoe. Harmon and Blatt brought Zoe to a

babysitter, with an arrangement for Blatt to pick Zoe up at

10:00 pm.



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Husband calls the police

Harmon and Blatt discussed whether to call 911. Blatt

warned Harmon, “It’s risky. They’re capable of anything

because the courts grant them immunity from accountability as

long as they claim their damage was accidental. Everything the

police do is done by violence, or the threat of violence. It’s

not their child, it’s yours. So they’re free to behave

recklessly, knowing YOU will be left to bear the consequences

-- and you will bear them for years to come.”

It was agreed that Blatt would video record the

encounter. Harmon called 911. Police visited Jennifer;

however, they declined to arrest her. Nor did they interview

Harmon, or write a report. Harmon doggedly contacted various

law enforcement agencies asking them to take his report. SPD

officers Michelle A. Heitman, #7434, and Marcus D. Inouye,

#6414 (“the officers”) finally arrived at Harmon’s apartment.

Officers demand Zoe

From the outset, the officers made it clear they would

not arrest the mother. They demanded that Harmon deliver Zoe

to them. Harmon declined to produce Zoe, assuring the officers

that Zoe was safe and in a licensed daycare facility. The

officers refused to accept this and continually demanded Zoe.

The officers failed to articulate any reasonable suspicion(s)

or to identify a lawful authority on which they might rely;



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nor did they identify any harm that would come to Zoe in her

father's care.

At this time, Jennifer Weitzman arrived outside Harmon’s

apartment, the police having allowed her to remain at large.

At 21:35 HRS, officer Heitman ordered Harmon to sit on the

hood of a patrol car equipped with visual and aural monitoring

[“In-car video”]. Officer Inouye told Blatt to keep quiet, and

officer Heitman ordered Mr. Blatt to stand by the building

door. Blatt complied.

Police seize and interrogate husband

As Harmon sat on the hood, Heitman, an illiterate who

probably does not even have children of her own, issued what

she called “orders” to him to give up his child. Harmon

steadfastly refused, saying that the police’ refusal to arrest

Jennifer made him feel uncomfortable and gave him pause.

Heitman told Harmon:

We’d like to speak with the child … [W]e need to know that she’s in this state … [W]e are not going to let the child go with her [Jennifer] … [W]e promise we are not going to take the child, and we are not going to give her to either party. Like I said, that’s not our job to enforce custodial stuff.

However, Harmon remained unassuaged. He politely expressed

incredulity and elected to exercise his right to remain

silent. Harmon also explained to the officers that he was



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recovering from meningitis and should not be kept out in the

cold. The officers kept Harmon on the hood, and ultimately

kept him awake through the night.

Police occupy residence

At approximately 21:50 HRS, Blatt left the wall to pick

up Zoe. A group of SPD officers then broke into Harmon’s

apartment, searched it, seized Harmon’s keys, threatened

Harmon with unspecified charges, disregarded Jennifer’s

threats, and refused to leave Harmon’s apartment until he

would produce his daughter. Blatt phoned Harmon, and upon

learning that Harmon was being held hostage, Mr. Blatt, under

Harmon’s direction, made preparations to contact an attorney

with Zoe in the morning.

Police intercept phone calls

The officers ordered Harmon to send Blatt voice- and e-

mail messages purporting to be from Harmon, but in words

dictated by the officers demanding Zoe’s return. Blatt did not

respond to these messages. The officers also forced Harmon to

facilitate their monitoring and interception of Blatt’s

private phone conversations with him.

Later that night, Mr. Blatt called a second time, and

asked Harmon whether the police were still menacing him.

Harmon told Blatt they were denying him sleep, threatening



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violence, and were breaking him down -- officer Heitman

grabbed the phone from Harmon and screamed hysterically into

the receiver; then handed the phone back to Harmon as quickly

as she had grabbed it -- Blatt, asked Harmon to give the phone

back to officer Heitman so he could address her concerns, and

let her speak with Zoe. Officer Heitman refused to take the

phone.

In speech sounding uncharacteristically stilted and

scripted, Harmon asked Blatt to return Zoe. After trying to

persuade Harmon to continue resisting, Blatt asked Harmon a

few questions to determine whether this was a true expression

of his will, or the fruit of four hours of interrogation,

sleep deprivation, promises, and threats, Mr. Blatt agreed to

return with Zoe.

Police infiltrate parking garage, kidnap Blatt and Zoe

Officer Heitman sequestered Harmon in his apartment,

while other officers descended to his private, secured,

underground parking garage to intercept Blatt and keep him

from bringing Zoe to her father. At approximately 01:24 am a

gang of officers charged at Mr. Blatt with guns drawn,

screaming, “DOWN ON YOUR KNEES! NOW! PUT YOUR HANDS ON TOP OF

YOUR HEAD!” They bound Blatt in chains while officer Inouye

jutted in Blatt’s face, rattling off a litany of “charges” he



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could bring against him. Mr. Blatt responded, “Do whatever you

think you can get away with.”

Police place Zoe in harm’s way

The officers kidnapped Zoe and transferred custody to

Jennifer Weitzman, forbidding Zoe and her father to say

goodbye to each other.

Father suffers shock, requires hospitalization

Blatt’s warnings to Harmon about police modus operandi

failed to prepare him for the shock. Harmon had to be admitted

to the hospital emergency room for stress.

Blatt was abducted and transported in a van -- going 60

mph and not allowed to wear a seatbelt – to jail where he was

locked in a cage like an animal for three days.

I certify under penalty of perjury of the laws of the

State of Washington that the foregoing summarizes the evidence

I anticipate to be introduced at a hearing on this suppression

motion. Signed in Seattle, Washington this 18th day of May,

2011.

_______________________________Leonard Blatt



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LIES IN THE POLICE’ REPORT:

These are examples of lies and embellishments which belie

bias in officer Heitman’s incident report. This is not to raise

issues, but for edification. The public pays their police to

tell the truth, not lies. When a public servant receives

revenue allocated for one purpose and uses it for a purpose it

was not intended, that public servant is guilty of embezzlement

of public funds, a felony:

1. Heitman lies that Blatt told her he may have a warrant because “he received tickets and didn’t pay them.” The video shows Blatt telling her: “I got a traffic ticket a couple of months ago and they said they’d mail me a court notice and I never got it. But I moved a few times. So if they did mail it to me and I didn’t respond to it, there could be a warrant right?”

2. Heitman lies that the “warrant [is] why he didn’t want to provide his information.” The video shows that Blatt’s reluctance was solely for fear of Jennifer Weitzman. Blatt explained, “I don’t want her to come after me.”

3. Heitman discounts Blatt’s testimony by lying that Blatt admits hearing “most” – that is, not all -- of Jennifer threats, and “only knew what Harmon had told him.” Heitman further opines: “I wasn’t convinced entirely that he was present during the incident.” The video shows the colloquy as it was:

H: And what did you exactly hear?

B: I heard her, uh, threaten to kill herself, threaten to, say – she said something to the effect that if she kills her daughter and herself, they’ll both go to heaven. And that she would vandalize the car. She was just going everywhere threatening violence … And at first, she sounded really calm – like extra calm. And then just snapped. The switch was just like seamless, from calm to crazy.

4. Heitman lies that Harmon stated he “could not trust

anyone” and that “people would hurt in some way Zoe if she was located.”



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5. Heitman’s report is intersticed with her own accusatory rhetorical questions, omitting the answers that Blatt and Harmon gave her.

6. Heitman lies that Blatt “refused” to sign the daycare

center log. Blatt was neither asked to sign a log, nor made aware of it.

7. Heitman lies that when Blatt called, “[t]he first thing

Blatt asked was if the police were going to take him to jail on his warrants.” No, this is simply made up by Heitman.

8. Heitman half-lies that she “attempted to speak to Blatt on the phone.” This implies a dialog. This was not the case. In reality, Heitman’s “attempt” sounded to Blatt more like the ranting of a crazed woman. Because she was yelling into the receiver so loudly, Blatt could not discern what she was trying to say, except to make out cursing. During this “conversation,” Heitman never asked Blatt where Zoe was or how Zoe was. Heitman just hollered into the phone and handed it back to Harmon. Harmon relayed to Heitman that Blatt requested to talk with her so he could figure out what she wanted and give her an opportunity to speak with Zoe, but she refused to talk to Blatt.

III. QUESTIONS What authority did the police have to seize Harmon and demand his child?

Can the police just barge into people’s lives and bully them into turning over family members?

Can the state punish you for having the temerity to tell them you find them not trustable?

Can you commit “Obstruction” by exercising your god given right to free speech?

Can you obstruct by stating the truth: that the police will arbitrarily take your child?

Does the state need an excuse, or can it simply take away children from people it deems “unstable” or “liars” or whose attitude is otherwise not to their liking?



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IV. ARGUMENT

Police had no justification to demand Zoe from Blatt.

They were able to seize Blatt only by 1) first seizing Harmon

and forcing him to submit to illegal monitoring of Blatt’s

calls, in which Blatt possessed 4th and 5th Amendment property

interests, and 2) by breaking and entering into a parking

garage in which Harmon granted license to Blatt, in whom

therefore inhered 4th Amendment and Article I, section 7

property rights. All evidence police acquired subsequent to

those acts are inadmissible as fruit of the poisonous tree.A. Critera for Welfare Check is “Clearly Established” Law

The criteria for child welfare checks have been

established by a long line of cases. In Rogers v. County of

San Joaquin, Child Protective Services received a report that

the Rogers’ children:

were locked in their rooms

had multiple bruises on their legs

looked very pale

had unkempt hair with bald patches

had mouth infections

were not given dental care

had no health insurance

were not sent to preschool

were not being toilet trained

and lived in a home that had: DEFENSE MOTION TO SUPRESS (CrRLJ 3.6) 10


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unsecured guns

rat droppings

maggot-infestation

feces smeared on walls

vomit on the furniture

overflowing garbage

piles of dirty dishes

dirty clothing scattered everywhere

dirty bedding; mattresses without frames

A police officer and CPS worker Royal removed the children

and brought them to a hospital. The parents sued. The Court

held:

Assuming Royal’s version of the facts, the Rogers children were in a sorry state and suffering from neglect of a type that could, if their parents’ conduct was not modified within a reasonable period of time, lead to long-term harm. Still, the conditions here did not present an imminent risk of serious bodily harm. It would have taken Royal only a few hours to obtain a warrant. In removing the Rogers children from their home without obtaining judicial authorization, Royal violated the Rogers clearly established Fourth and Fourteenth Amendment rights.

[T]he conditions in the home, even if as unsanitary as Royal asserts, fail to indicate any imminent danger of serious bodily harm. … [T]here is no indication in the record of any particular risk that the Roger’s children would become seriously ill during the few hours that it would take Royal to obtain a warrant. …Royal also relies on the family’s lack of medial insurance and daycare. [This] would border on the unconstitutional.



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Parents and children have a well-elaborated constitutional right to live together without governmental interference … The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies. …Officials violate this right if they remove a child from the home absent information at the time of the seizure that establishes ‘reasonable cause to believe that the child is in imminent danger of serious bodily injury.’

The law was clearly established at the time of the events in this case that a child could not be removed from the home without prior judicial authorization absent evidence of ‘imminent danger of serious bodily injury and [unless] the scope of the intrusion is reasonably necessary to avert that specific injury.’ [All emphases added]

State v. Sanchez, 74 Wn. App. 763 (1994), citing Mabe v. San Bernardino Co., Dept. of Pub. Soc. Svcs, 237 F.3d 1101, 1106, 1107, 1108 (9th Cir. 2001); Wallis v. Spencer, 202 F.3d 1126, 1136, 1138, 1140 (9th Cir. 2000); Doe v. Lebbos, 348 F.3d 820, 827 n. 9 (9th Cir. 2003); Ram v. Rubin, 118 F.3d 1306, 1310, 1311 (9th Cir. 1997); Calabretta v. Floyd, 189 F.3d 808, 813 (9th Cir. 1999); Carnell v. Grimm, 74 F.3d 977, 978 (9th Cir. 1996); Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Saucier v. Katz, 533 U.S. at 202 (2001); Anderson v. Creighton, 483 U.S. 635, 640 (1987);

B. Investigative Detention Critera is “Clearly Established”

Alternatively, if the police claim not to have been

performing a “community caretaking” function requiring the

imminent danger of serious bodily harm standard, but rather an

investigative detention (Terry stop) requiring the reasonable

suspicion of criminal activity standard, the prosecution is

still out of luck.



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The point at which Harmon was ordered to sit on the hood

of the patrol car and Blatt was ordered to stand by the door,

they were seized as a matter of law. In State v. Ellwood, the

court found that an officer’s request for the defendant to

“wait right here” constituted a seizure. 52 Wn.App. 70, 73

(1988). It does not matter that Blatt left the door to pick up

Zoe. A citizen need not submit to the officer’s show of

authority in order for the court to find that a seizure

occurred. State v. Young, 135 Wn.2d 498 (1998) (declining to

adopt the federal definition of seizure set forth in

California v. Hodari D., 499 U.S. 621 (1991)).

There is no doubt that police seized Blatt and Harmon not

to check their welfare, but to detain them for an

investigation – a Terry stop. Under Terry, police officers

need not have a warrant to “stop” a suspect if they have a

“reasonable, articulable suspicion that criminal activity is

afoot.” Terry v. Ohio, 392 U.S. 1, 21 (1968); State v. Kinzy,

141 Wn.2d 373, 385 (2000) quoting Illinois v. Wardlow, 120

S.Ct. 673, 675 (2000). No reason for suspicion of criminal

activity has thus far been articulated.

With regard to the seizure of Zoe, if the police want to

escape the requisite imminent danger of serious bodily injury,

and instead claim they were performing an investigative child

safety check, State v. Kinzy is analogous. There, police found



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a minor on the streets late on a school night in a high

narcotics trafficking area in the company of an older male

known to police to be involved in narcotics. The police

approached to ask if she was OK. She started to walk away. The

officer stopped her by putting his hand on her shoulder. The

court said:Once the initial contact is made, the individual is entitled to walk away and terminate the encounter and may not be restrained by the officer absent some other justification such as a reasonable articulable suspicion of that the individual is engaged in criminal activity.

In this case, the findings of fact do not support justification for a Terry stop because the first two sequential events of March 3, 1998, provide no indication of criminal activity by Petitioner. Indeed, Officer Jennings testified his reason for initiating contact with Petitioner was simply concern for her safety and not suspicion of criminal activity. Because Respondent State of Washington cannot establish a valid Terry stop, it relies instead upon the ‘community caretaking function’ exception to the warrant requirement.

State v. Kinzy, 141 Wn.2d 373, 375, 385 (2000)

Now Heitman and her gang are saddled with daunting task

of articulating how anyone was engaged in criminal activity.

Like Kinzy, once the initial contact was made, and it was

discovered that Zoe was just fine, Zoe, Harmon, and Blatt were

free to terminate the encounter. However, Zoe was taken away,

Harmon was imprisoned in his own apartment, and Blatt was

hauled off to jail.

In Lundstrom, a case uncannily analogous to the instant DEFENSE MOTION TO SUPRESS (CrRLJ 3.6) 14


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matter, a retired police officer called 911 to report a

female neighbor abusing her toddler. Officers arrived to do a

child welfare check. “When [Mr.] Lundstrom opened the front

door, he was openly suspicious” [**21] and hostile toward

officer Debra Romero. She told him “she needed to enter

Lundstrom’s house to verify no child was in need of

assistance.” [**4] Mr. Lunsdstrom cursed at Romero and

slammed the door. Then he called 911 to complain. A female

resident who had exited the house, tried to talk with the

officers about their concerns but was ignored. Backup units

arrived and were told a “disorderly subject had ‘barricaded’

himself inside the house.” They penetrated his curtilage and

peered into his windows. Police eventually prevailed upon

Lundstrom to exit, and handcuffed both residents while they

searched the house, finding no child in danger. The residents

sued. The appellate court held:

“Lundstom contends the officers unreasonably seized him when they surrounded his house, ordered him to exit, and he complied with their instructions. The district court ruled this encounter did not amount to an unlawful seizure because the officers were conducting a child welfare check pursuant to their community caretaking function, exigent circumstances existed, and Lundstrom did not yield to the officers’ show of authority. We do not agree with the district court’s conclusions … Nor at the time did the officers have a ‘particularized and objective basis for suspecting Lundstrom of legal wrongdoing,’ [citation omitted] or knowledge of facts and circumstances that would lead a



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‘prudent man’ to believe he had committed an offense. [citation omitted] While Lundstrom was not as cooperative as we hope citizens would be in response to a law enforcement investigation, nothing indicated he had done anything wrong and he did not pose a threat to the officers. To the contrary, the record demonstrates: the neighbor reported hearing a woman – not a man – disciplining a child.” [emphasis on “woman” in original]. [in the instant case, the record demonstrates: a woman, Jennifer Weitzman – not a man – threatening a child]

[Despite] Lundstrom moving about the residence ‘frantically,’ reviewing the record from the viewpoint of a ‘prudent, cautious, and trained’ officer, we do not find that the officers were confronted with reasonable grounds to believe there was an immediate need to seize Lundstrom … Because the officers seized Lundstrom [**31] without adequate justification, they violated his constitutional right to be free from unreasonable seizure … We have no difficulty in finding a reasonable officer would have understood the alleged conduct violated the constitutional right to be free from unreasonable seizure. …The district court held that [the] detention [of the woman who exited the house] was reasonable for protective purposes and because the officers had a basis for believing she may have been involved in mistreating the child about whom the neighbor called 911. We disagree. [**23] … The officers argue, similarly, that their search was not illegal because they reasonably believed a child was in need of immediate aid. They also [*1128] contend, in the alternative, it was not clearly established that their search of the house was unreasonable under the circumstances. We disagree.”

Lundstrom and Hibner v. Alberquerque Police Officers, et al., 616 F.3d 1108 (2010)

C. The Officers’ Claimed Authorities are Invalid



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Officer Heitman’s declaration in support of probable

cause (hereinafter, “report”) attempts to identify the source

of police authority to conduct a child welfare check on Zoe,

and how Blatt obstructed that check:

I became concerned of [sic] Zoe’s welfare because of the behavior exhibited by Harmon and that [sic] behavior also exhibited by that of [sic] Blatt.

[Heitman’s report, page 2, par. 2]

Blatt obstructed a public officer by knowingly and intentionally hindered [sic] and delayed [sic] my investigation 1) by failing to return Zoe upon my order and the order of Harmon on several occasions. Blatt also further [sic] hinder [sic] my investigation by attempting to convince Harmon to not produce the child for the welfare check because the police lie to people and will take the child away.”

[Heitman’s report, last page, par. 1]

Blatt’s “Behavior” -- immaterial

First, Heitman alludes to “behavior” exhibited by Harmon

and Blatt to excuse the police intrusion, yet fails to specify

that behavior. The only behavioral observations in the record

about Blatt range from innocuous to exculpatory. They follow

chronologically:

1. Blatt video recorded the officers;

2. Blatt allegedly “didn’t pay” tickets;

3. Blatt mentioned a possible traffic infraction warrant;

4. Blatt hesitated, then told about Jennifer’s threats;

5. Blatt appeared to be coached by Harmon;



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6. Blatt complied with Heitman’s request to step away;

7. Blatt refused to give police his phone number;

8. Blatt did not have a driver’s license;

9. Blatt had a non-specified “criminal history”;

10. Blatt left and picked up Zoe;

11. Blatt hurriedly took Zoe without signing or car seat;

12. Blatt told Harmon police lie, and to hang tough;

13. Blatt refused to deliver Zoe to police;

14. Blatt attempted to return Zoe to Harmon;

15. Blatt was taken “into custody without incident”

16. Blatt “required no mental exam” and uses no drugs

17. Blatt’s Child Endangerment charge deemed “Unfounded”

There are no other observations about Blatt. It is self

evident that none of these show Zoe to be in imminent danger.

Harmon’s “Behavior” -- immaterial

Harmon’s behavior is also cited. However, one is hard-

pressed to find anything approaching probable cause, save

unflattering ad hominem portrayals and vague unsympathetic

impressions:

Harmon … seemed to be very nervous, unsteady, and perspiring significant [sic] amount.

[Heitman’s report, page 1]



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To cleanse her warrantless seizure, Heitman relies on

police officer and amateur psychologist, “Officer Sweeney” –

who offers his assessment of Harmon from afar:I spoke with Officer Sweeney of the King County Sheriffs [sic] Office. … Officer Sweeney stated that Jennifer [did not] make any statements or actions that were consistent of [sic] her being in a suicidal state of mind … Sweeney informed me that Jennifer had called Harmon … and Harmon started telling her not to be suicidal and wasn’t making much sense … Based on his [Sweeney’s] information it appeared that Harmon’s behavior and demeanor was were [sic] very agitated and overly emotional … [Emphasis added]


“Doctor” Sweeney analyzes Jennifier without having

psychological credentials, and finds Harmon “wasn’t making

much sense” without having met him. The “doctor” fails to

disclose the level of agitation and emotion appropriate for a

father facing the specter of his wife’s murder-suicide. By any

rational account, Harmon’s despair was consistent with that of

a domestic violence victim.

[Interestingly, Heitman describes Jennifer as “very calm”

– a demeanor consistent with suicidal depression; or

alternatively, with someone not too worried about their child

being in their father’s care -- yet Heitman claims to have

given Jennifer custody because of this eerie demeanor]

Notwithstanding Heitman’s request that this court rely on

thrice removed hearsay about Sweeney allegedly telling Heitman



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about what Jennifer allegedly told Sweeney about what Harmon

allegedly told Jennifer, its use is precluded as a matter of

law. An officer’s good faith reliance on information supplied

by a fellow officer does not determine the validity of the

arrest. State v. Trenidad, 23 Wn. App. 418 (1979).

Where multiple levels of hearsay are involved, each

declarant must satisfy the two-pronged Aguilar-Spinelli test

for knowledge and veracity. Aguilar v. Texas, 378 U.S. 108

(1964); Spinelli v. United States, 393 U.S. 410 (1969); United

States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973). Here,

Sweeney’s knowledge and veracity are not averred.

Even if Sweeney’s opinion were somehow deemed material,

it does not meet any of the hearsay exceptions under ER 803 or

ER 804 and lacks any indicia of reliability. It would be

inadmissible at trial and could not be used to support a

finding that police had authority to force a welfare check.

In a case similarly involving a female thought to need a

welfare check, a 911 caller reported that a car was parked on

a road for several hours and a woman in it may be in trouble.

Police arrived to do a community caretaking welfare check and

observed two males in the car without the female. One male

looked ‘dazed’ and confused. Police asked for identification.

The court ruled:Although the request for identification was a minimal intrusion, it was not warranted as no crime had been reported. The only rationale given for pursuing the investigation [beyond intitial



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contact] was the ‘dazed, confused look’ on Mr. Markgraf’s face. Reversed and dismissed.

State v. Markgraf, 59 Wn.App. 509 (1990)

In a case where a man whose plenary neuroses were alleged

to run the gamut was behind the wheel of a car, the court

said, ‘So What!’:

Deputy Small noticed Mr. Henry had glassy eyes, moved slowly, and acted ‘kind of like he was in some type of daze or something of that nature’ [at 552] and ‘looked real nervous’ [at 546] Mr. Henry then began to perspire heavily, appeared to be upset, turned pale and complained of being sick and nauseous. [at 540] Police patted him down and found a crack pipe.

…[M]ost persons stopped by law enforcement officers display some signs of nervousness. [citation omitted] Although Deputy Small testified based on his experience that Mr. Henry appeared more nervous than normal, the officer on close examination was not able to articulate a basis for his conclusion. Therefore … he had no [probable cause] to search. [at 552]

State v. Henry, 80 Wn.App. 544 (1995). See also State v. Coyne, 99 Wn.App.566 (2000) (Nervousness during interaction when police return property does not support a seizure)

EXCLUSIVE!

Man Charged with Telling the Truth.

READ ALL ABOUT IT!The second prong of Heitman’s charge cites Blatt’s



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“attempting to convince Harmon to not produce the child for the welfare check because the police lie to people and will take the child away”

as the alternate means by which he Obstructed. Nonetheless,

it remains axiomatic that the right to free speech is

sacrosanct. A person cannot be convicted of Obstruction for

exercising a constitutionally guaranteed right -- especially

when the offending speech is truthful. Heitman complains that

Blatt told Harmon the police lie, then wasted no time in

proving Blatt’s words prophetic: Heitman kidnapped Zoe and

forced her to go with Jennifer -- after assuring Harmon:

[W]e are not going to let the child go with her [Jennifer] … [W]e promise we are not going to take the child. …How can you ask for our help and say you don’t trust us.” [We don’t trust fire either, but it’s useful when under control.]

SPD in-car video, 01/21/11.

In a brazen act of hypocrisy and cynicism, the officers

then (unsuccessfully) asked the prosecutor to file kidnapping

charges against Blatt. When the jury hears of this, they will

be pissed off. No jury will convict a man for telling the

truth, no mater how unsettling, disturbing, or embarrassing.

But they will condemn liars.Reaspondeat Superior – inapplicable

Notwithstanding Heitman’s inane attribution of respondeat

superior, Blatt is not legally accountable for Harmon. RCW

9A.08.020. Harmon is not Blatt’s ward or charge, and such is



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not alleged. Blatt cannot make Harmon do anything, let alone

commit the imaginary “crime” of failing to surrender his

offspring to the state.

‘Obstruction’ – Mere Words are immaterial

Third, the Obstruction charge encompasses deeds, not

words. Obstruction of a law enforcement officer, RCW

9A.76.020, applies only to affirmative conduct, not mere

speech. State v. Spartucus Williamson, 84 Wn.App 37 (Div. 2

1996) That is, the person must actively obstruct. In this

case, Blatt simply did not act. Other cases have followed this

reasoning. In State v. Contreras, 92 Wn.App. 307, 966, P.2d

915 (1988), the court recognized that mere refusal to talk

with the police is not obstructing. However, the defendant in

that case did more: he gave officers a false name and failed

to keep his hands on top of the vehicle. Id. at 316.

Child Restraint –- Irrelevant

The police allege they had authority to perpetrate a

child welfare check because Blatt failed to use a child

restraint seat. The police are attempting to distract the

court with a red herring, in violation of RCW 46.61.687 which

states:Failure to Use Child Restraint Not Negligence -- Failure to comply with the requirements of this section shall not constitute negligence by a parent or legal guardian. Failure to use a child restraint system shall not be admissible as evidence of negligence in any civil action.

RCW 46.61.687



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A child welfare check is not a criminal investigation; it

is civil in nature. The law explicitly prohibits the police

from characterizing this as “negligence.” RCW 26.44.100(1)

states the legislative intent:The legislature find parents and children often are not aware of their due process rights when agencies are investigating allegations of child abuse and neglect. The legislature affirms that all citizens, including parents, shall be afforded due process, that protection of children remains the priority of the legislature, and that this protection includes protecting the family unit from unnecessary disruption.

RCW 26.44.100(1)

Furthermore, police need reasonable suspicion of a crime

in order to conduct an investigative detention. Failure to use

a child restraint is an infraction, not a crime. Even

arguendo, a misdemeanor must be committed in the officer's

presence to give him authority to arrest (let alone penetrate

a secured underground parking garage to effect the arrest); an

officer may arrest only for felonies committed out of his

presence. In any case, Blatt HAD Zoe in a child restraint

seat. Even the SPD detectives found the Endangerment charge

“unfounded.” [Report snapshot, Public Disclosure, page 101]

Daycare Log – Irrelevant

The police pretend Blatt’s putative “refusal” to sign the

daycare log made it impossible to know it was really Blatt who

picked her up, as if knowing so would have neutral-ized them.

The controlling WAC operates only on the daycare center DEFENSE MOTION TO SUPRESS (CrRLJ 3.6) 24


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operator, not the parent or guardian; the operator is required

to ask guardians for their signature. However, no law compels

a parent or guardian to sign. It cannot, per the federal

constitutional prohibition on impairing or, conversely,

compelling the obligation of contracts.

Furthermore, a signature on a sign-out sheet proves

nothing; anyone can forge a signature. No one was alleging Zoe

was kidnapped from daycare. That this is a sham issue is

evidenced by the fact that the police declined to simply show

the daycare operator a picture of Blatt and ask if it was

Blatt. The police could also have spoken to Blatt and Zoe when

he called, but they refused.

Child Must be in State – Absurd

On the night in question, the police feebly “grasped for

straws” when required by Harmon to identify how they might

derive lawful authority to conduct a welfare check. The

clearest reasoning they offered amounted to idle curiosity:

“We’d like to speak with the child.” [in-car video]

They also concocted an imaginary new law: “[W]e need to

know that she’s in this state.” [in-car video] However,

neither Harmon nor Blatt were aware of any law requiring a

child be to in this -- or any -- particular state. And if

Harmon were in violation of law by having Zoe in the wrong

state, his right to talk to an attorney was not being honored.

If this sounds bizarre, that’s because it is.



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The police could not articulate -- and neither Blatt nor

Harmon could discern -- their claimed authority. The record is

devoid of any suggestion of exigent circumstances. The record

is devoid even of speculation, thus obviating a welfare check.

Furthermore, the daycare center confirmed to police that

Zoe was “in this state,” obviating a raid on the parking

garage.

Blatt’s Criminal History – Immaterial

Heitman’s report alludes to Blatt’s “criminal history,"

suggesting it provides grounds for probable cause. It is

impossible to tell because it is not stated as a fact, but as

one of the answerless rhetorical questions and commentaries

Heitman inserts into her report, ostensibly to assist us: I asked [Harmon] why did Blatt pick her up when he did not have a driver’s license. …I also asked Harmon why he would entrust Blatt with the care of Zoe if he had prior knowledge of Blatt's criminal history and concern with current warrants. [Harmon’s answers, if any, are omitted]


The Police compile and maintain a system of records. They

therefore have control over the records’ content. Police

officers have the power [albeit unlawful] to initiate charges

on bogus reports, and they do so with a frequency that has

attracted the attention of the FBI, which is investigating the

SPD. Once an officer has written a fraudulent report, it

becomes part of the subject’s permanent “criminal record.”



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Of all the criminal charges brought against Blatt, 75

have been stricken, dismissed, or resulted in acquittal --

THAT suggests malfeasance in the Police Department and

prosecutor’s office – it indicates they are reckless at best

and corrupt at worst. The Seattle Police Department has

generated no less than fifteen (15) bogus domestic violence

reports against Mr. Blatt in nearly as many years – yet none

of them has resulted in a plea, conviction, or even a trial.

THAT says something is seriously wrong. The Seattle Police

Department has a pattern and practice of making every man who

talks back to his wife a domestic violence defendant. And he

needn’t hit her, or threaten her. She simply needs to claim

she is afraid – something impossible to disprove in any court.

This is state crime, and Mr. Blatt is not a criminal but

a crime fighter. Among the crimes he fights is police

corruption. Mr. Blatt devoted his life to fighting crime after

witnessing corruption as an employee of the Seattle Police

Union. The union was committing fraud and asking Mr. Blatt to

aid and abet. Blatt quit. Later, Blatt’s friend, Wallace G.

Lawry –- a 20-year veteran of SPD, only weeks away from

retirement -- was fired and de-pensioned for stating in an

affidavit that his colleagues “behaved unethically.” Mr.

Blatt’s first crime-fighting mission was to notice SPD of a

lawsuit, resulting in the restoration of Lawry’s job and

pension. Mr. Blatt has kept the Stafford Frey Cooper law firm



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and Seattle’s municipal bonding company very busy, and cost

the SPD many thousands of dollars in lawsuits for their

fraudulent police reports. Even if Blatt loses, he wins –

because his objective is not to get rich, but to make crime

costly. On the evening of January 21, 2011, Harmon left this

message on Blatt’s voice mail: “[One of these] officers knew

you from the past and he’s really amped up ….” This officer is

officer G. Hughes #6237 mentioned in Heitman’s report. Blatt

sued Hughes under U.S. District Court case docket #02-1696 for

generating a fraudulent incident report alleging Blatt beat a

woman in north Seattle – at a time when Hughes knew or should

have known Blatt was confined in jail due to a previous bogus

DV report.

Even assuming Mr. Blatt is a baddass criminal, a

“criminal history” is not sufficient to support a belief that

the person is engaging in criminal activity, and does not

allow the police a warrantless search and seizure, and the

fact that Zoe was in the company of someone suspected of crime

does not establish the necessary reasonable articulable

suspicion:

If a prior conviction, not to mention a prior arrest, should afford grounds for believing an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he



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had reformed. To the Best of our knowledge, the law does not countenance such an assumption.

State v. Tocki, at 464 [footnote omitted]; State v. Hobart, 94 Wn.2d 437, 446-47 (1980); State v. Lennon, 94 Wn.App.573, 580, review denied, 138 Wn.2d 1014 (1999).

Blatt’s Lack of Driver’s License – Immaterial

The police cannot claim that Zoe was unsafe riding in

Blatt’s car; the DOL record shows he received a speeding

ticket (less than 10 mph over the limit) in 1989. This is the

extent of Blatt’s moving violations. This, despite the record

showing that he has been a daily driver for over 35 years, the

last 20 of which he has elected to exercise his right to drive

without the state’s license.

D. Blatt had a Duty to Obstruct the Officers

Had the police applied for a warrant and been issued one,

their acts could be characterized as a search, seizure, and

arrest. But because they acted in the absence of all lawful

authority, it was not a search, seizure, and arrest, but

breaking and entering, assault and battery, wire tapping, and

kidnapping. The victims of these crimes had a right to resist

their commission. All three victims had a right to be left

alone. If rights are not exercised, they disappear. Therefore

it is a man’s duty to exercise his rights. In this case, Zoe’s

life was threatened by the officers’ extra-judicial custody

transfer. Washington law recognizes the right to forcibly

resist – even by lethal force -- an officer’s kidnapping: DEFENSE MOTION TO SUPRESS (CrRLJ 3.6) 29


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An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right to use force in defending himself as he would in repelling any other assault and battery.

State v. Robinson, 145 ME. 77, 72 ATL. 260.

It is the law that a person illegally arrested by an officer may resist that arrest, even to the extent of the taking of life if his own life or any great bodily harm is threatened.

State v. Rousseau, 40 Wa.2d, 92, 241 P.2d 447, 449 (1952);

In a case where a father denied Police warrantless entry

into his house to apprehend a minor they saw holding a beer

bottle, the court ruled:

[T]he question is not whether Mr. Blesselle obstructed Officer Buckso -- of course he did. The question is whether he legally obstructed Officer Buckso in reliance on his constitutional (state and federal) right to insist on a judicial warrant as a condition of entry on his home. In other words, were there exigent circumstances sufficient to dispense with the requirement of a warrant? [Emphasis added]

State v. Bessette, 105 Wn.App. 793, 797, 21 P.3d 318 (2001)

A citizen has a right to resist an unlawful arrest ...”

Jones, 63 Wn.App., at 706 “Citizens may resist unlawful

arrest to the point of taking an arresting officer’s life if

necessary.” Plummer v. State, 136 Ind. 306. This premise was

upheld by the Supreme Court of the United States in Bad Elk,

and in other courts:

Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very



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different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.

John Bad Elk v. U.S., 177 U.S. 529.

An arrest made with a defective warrant, or one issued without affidavit, or one that fails to allege a crime is within the jurisdiction, the one who is being arrested may resist and break away. If the arresting officer is killed by one who is so resisting, the killing will be no more than an involuntary manslaughter.

Housh v. People, 75 111.491; reaffirmed and quoted in State v. Leach, 7 Conn. 452; State v. Gleason, 32 Kan. 245; Ballard v. State, 43 Ohio 349; State v. Rousseau, 241 P.2d 447; State v. Spaulding, 34 Minn. 3621.

When a person, being without fault, is in a place where he has a right to be, is violently assaulted, he may, without retreating, repel by force, and if, in the reasonable exercise of his right of self defense, his assailant is killed, he is justified. …These principles apply as well to an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as they do to a private individual who unlawfully used such force and violence.

Jones v. State, 26 Tex.App, 1; Beaverts v. State, 4 Tex.App. 175; Skidmore v. State, 43 Tex. 93, 903.

Each person has the right to resist an unlawful arrest. In such a case, the person attempting the arrest stands in the position of a wrongdoer and may be revisited by the use of force, as in self-defense.

State v. Mobley, 240 N.C. 476, 83 S.E.2d 100

A sheriff who ‘acts without [due] process,’ or ‘under a process void on its face, in doing such



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act, he is not to be considered an officer but a personal trespasser.

Roberts, v. Dean, 187 So. 571, 575 (Fla. 1939)

A person has a right to resist an unlawful arrest by an unlawful authority, i.e. an officer without a valid warrant.

Franklin, 118 Ga. 860, 45 S.E. 698 (1903)

What kind of resistance to the arrest? The authorities are in agreement that since the right of personal property [the right to a warrant and the right to privacy are recognized as personal property rights] is one of the fundamental rights guaranteed by the Constitution, and any unlawful interference with it may be resisted and every person has a right to resist an unlawful arrest. *** and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.

City of Columbus v. Holmes, 152 N.W.2d 301, 306 (Ohio App. 1058 or 1958)

It is the law of self defense and self preservation that is applicable. ‘One has an unalienable right to protect his life, liberty, or property from unlawful attack or harm.’ *** It is not an offense to liberate one from the unlawful custody of an officer, even though he may have submitted to such custody without resistance.

Adams v. State, 121 Ga. 163, 48 S.E. 910 (1904)

A citizen illegally arrested ‘cannot initiate the use of force’ and neither do ‘words alone justify an assault.’ However, ‘when the officer initiates the assault by physical contact, which is usually the case, and there is an unlawful arrest, the citizen has the right to protect his liberty to the extent of killing the officer.

Green v. Kennedy, 48 N.Y. Rep. 653, 654 (1871) and/or Hicks v. Mathews, 266 S.W.2d 846, 849 (Tex. 1954)



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What rights then has a citizen in resisting an unlawful arrest? An arrest without a warrant is a trespass, un unlawful assault upon the person, and how far one thus unlawfully assaulted may go in resistance is to be determined as in other cases of assault. Life and liberty are regarded as standing substantially on one foundation: life being useless without liberty, and the authorities are uniformed that where one is about to be unlawfully deprived of his liberty he may resist the aggressions of the officer, to the extent of taking the life of the assailant, if that be necessity to preserve his own life, or prevent infliction upon him of some great bodily harm.

State. v. Gum, 68 W.Va. 105, 69 S.E. 463, 464 (1910).

E. Harmon Was Seized

Harmon indeed called the police – but to report his

wife’s threats. This did not oblige him to continue talking

with police once he determined they were biased, as evidenced

by their initial reluctance to take a report from him, their

instant refusal to consider arresting Jennifer Weitzman; and

their confiscation of his keys. Harmon had a right to

terminate contact with the officers. Such attempt to terminate

did not give the police probable cause to seize him and gain

free access to his home including its garage. A person’s

rights to privacy in his home does not diminish when he opens

the door to the police. State v. Holeman, 103 Wn.2d 426, 429

(1985). Similarly, a lawful police entry into one part of the

home does not automatically authorize their entry into other

parts of the home. Michigan v. Clifford, 464 U.S. 287, 297-98

(1984).



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In Coyne, Two men who contacted police to report a lost

coat were seized because they were “acting nervous.” Police

told them to sit on the hood of the patrol car and asked them

to consent to a search. The court held: [The men] would not have believed they were free to leave once they were ordered to sit on the hood of the patrol car and remain there while an officer investigated. The officer retained Mr. Coyne's coat and license during the investigation. Under these circumstances, the trial court properly concluded both Mr. Coyne and Mr. Burt were seized without legal authority. The trial court correctly concluded the later given consent [to search] was vitiated by the prior illegal detention.

... The state incorrectly argues no seizure took place because Deputy Seig was justified under the community caretaking function ... Although the deputy thought their story was 'suspicious', this suspicion, similar to a 'dazed expression' in not enough to justify further intrusion. In other words, it did not amount to a reasonably articulated suspicion.

State v. Coyne, at 572-74 [Citation omitted]; Kilcup v. McManus, 64 Wn.2d 771, 777, 394 P.2d 375 (1964); Swetnam v. W.F. Woolworth Co., 318 P.2d 364, 366 ("Any restraint, however slight, upon another's liberty to come and go as one pleases, constitutes an arrest."); State v. Allen, 138 Wn.App. 463, headnote 3.

Officer Heitman commanded Harmon to sit on the car hood

for a recorded interrogation. During this interrogation she

told Harmon, “I’m giving you a lawful order to tell me where

the child is.” [in-car video] A reasonable person would not

have felt free to terminate the encounter after this



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directive. Heitman thus seized Harmon in the constitutional

sense.

A person is seized in the constitutional sense when his

or her freedom of movement is restrained. See United States v.

Mendenhall, 446 U.S. 544, 554 (1980); State v. Young, 135

Wn.2d 498, 509, 957 P.2d 681 (1998). "Any restraint, however

slight, upon another's liberty to come and go as one pleases,

constitutes an arrest." Swetnam v. W.F. Woolworth Co., 318

P.2d 364, 366. A person is seized by the officer for purposes

of the Washington State Constitution, article 1, section 7, if

the officer requests information for investigatory purposes

without having a reasonable basis for doing so, such as an

articulable suspicion of criminal activity. State v. Allen,

138 Wn.App. 463, headnote 3. Restraint amounting to a seizure

may arise either from the use of physical force or through a

show of authority. See State v. Avila-Avina, 99 Wn.App. 9, 14

(2000). The relevant inquiry for the court is whether, in

view of all of the circumstances surrounding the incident, “a

reasonable person would have felt free to leave or otherwise

decline the officer’s requests and terminate the encounter.”

See State v. Thorn, 129 Wn.2d 347, 352-53 (1996). Police need

not take physical custody of a person or belongings to have

made a seizure in the constitutional sense. See State v.

Ellwood, 52 Wn.App. 70, 73 (1988) (officer’s request to “wait



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right here” constituted a seizure). Police may seize an

individual through commands or requests even if the words used

do not explicitly implicate the freedom to walk away. See

State v. Richardson, 64 Wn. App. 693, 696 (1992)(emptying

pockets and placing hands on patrol car was seizure); State v.

Pressley, 64 Wn. App. 591, 598 (1992)(implicit direction from

officer to defendant “to remove her hand or to show him what

was in it” was a Terry stop requiring legal justification).

Whether an individual was seized turns not on the officer’s

perceptions of what occurred but on the citizen’s reasonable

evaluation of the situation. The officer’s subjective beliefs

or intentions are immaterial unless communicated to the

citizen. State v. Barnes, 96 Wn.App. 217, 223-24 (1999).

The officers thereafter entered Harmon’s apartment, and

came and went as they pleased through the night without

permission. They searched the rooms, confiscated Harmon’s keys

and sequestered him to prevent him from going to the parking

garage. Washington courts have found that taking control of a

person’s personal property during the course of an

investigation constitutes a seizure not just of the property

but of the individual. State v. Armenta, 134 Wn.2d 1, 12

(1997), and that permissive encounters “ripen into seizures

when an officer commands the defendant to wait, retains



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valuable property, or blocks the defendant from leaving.”

State v. Coyne, 99 Wn.App. at 573.

Harmon’s home was commandeered and his property held. He

was given orders and threatened with arrest. He had nowhere to

retreat – he was in his last refuge. It is obvious he did not

feel free to leave, and was thus seized.

F. Blatt has Standing to Challenge Harmon’s Seizure

Blatt had a license in Harmon’s home, including it’s

curtilage, with all attendant reasonable expectations of

privacy. Therefore, Blatt has standing to challenge the

police’ home invasion, strong-armed robbery, phone

surveillance, and other crimes against Harmon. State v. Allen,

138 Wn.App. 463, Division 2 (2007).

Automatic standing accrues to those who lose a possessory

interest due to a third-party’s illegal seizure. It is a maxim

of law that privacy and due process rights are property. Mr.

Blatt was robbed of his property due to the illegal seizure of

Harmon.

Where consent to search is obtained from one who shares

authority over the premises with another, the consent is valid

as to the consenting party. Walker, 136 Wn2d at 686, and any

absent, nonconsenting co-occupant. Id. At 682. The consent is

not valid, however, against a co-inhabitant who is present and

does not affirmatively consent to the search. Walker, at 683-



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84; Leach at 744. When two occupants are present, police must

get consent to search a home from both of them. State v.

Morse, 156 Wn.2d 1 (2005).

The Investigation Detention Exceeded any Lawful Scope

Notwithstanding the prosecution’s challenge of this

right, the police investigation went well beyond the scope of

taking Harmon’s report about his wife’s threats, it was a

fishing expedition. One that caused trauma and grief, but

yielded no fish. An investigative detention must be temporary

and last no longer than is necessary to effectuate the purpose

of the stop. Similarly, the investigative methods employed

should be the least intrusive means reasonably available to

verity or dispel the officer’s suspicion in a short period of

time. State v. Sweet, 44 Wn.App. 226, 232 (1986). If a

detention is impermissibly long, even the defendant’s consent

to a further search does not “purge the taint” of the illegal

detention. State v. Tijerina, 61 Wn.App. 626, 630 (1991).

Police Perpetrate Home Invasion / Armed Robbery

The police were armed. They took over Harmon’s apartment

and used it as a staging area. They refused Harmon’s demands to

get out, and even had the audacity to insult him. They grabbed

his keys and phone out of his hands. This was felony armed

robbery.



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But worst of all, they had their sights on his child --

they had Harmon “by the balls” -– and with this power, they

coerced Harmon into letting them intercept Blatt’s private

phone communications. This is an additional crime:

Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any: (b) private conversation, by any device electronic or otherwise, designed to record or transmit [i.e. speaker phone] such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation. [Emphases added]

RCW 9.73.030

With information thus illicitly gleaned, the officers

discovered that Blatt would be 1) driving, and 2) entering the

P3 garage to bring Zoe to her father. This court should not

allow the prosecution to benefit from the officers’ crimes.

G. Warrantless Searches and Seizures are Presumptively Unlawful

Warrantless searches and seizures are "per se"

unreasonable under both the state and federal constitutions.

State v. Walker, 136 Wn.2d 678, 682 (1998); State v. Chrisman,

100 Wn.2d 814, 818 (1984); Coolidge v. New Hampshire, 403 U.S.

443 (l97l).

Washington’s Constitution Affords Greater Protection

Under RCW 10.79.040 warrantless searches are crimes

punishable by up to a year in jail:



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It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling, house, or place of residence without the authority of a search warrant issued upon a complaint as by law provided.

RCW 10.79.040

The federal constitution only establishes a minimum level

of protection for individual rights. State v. Christman, 100

Wn.2d 814, 817 (1984). “It is now axiomatic that article I,

section 7 provides greater protection to an individual’s right

to privacy than that guaranteed by the Fourth Amendment.”

State v. Parker, 139 W.2d 486, 493 (1999). The Washington

Constitution has consistently provided greater protection of

individual rights than its federal counterpart. See State v.

Ladson, 138 Wn.2d 343 (1999); State v. Ferrier, 136 Wn.2d 103,

111 (1998). Even someone’s trash cannot be searched without a

warrant. State v. Boland, 115 Wn.2d 571, 578.

A warrantless search is presumed unlawful unless the

State proves that it falls within one of the narrowly drawn

and jealously guarded exceptions to the warrant requirement.

State v. Williams, 102 Wn.2d 733, 736 (1984). This rule is a

strict one. State v. Parker, 139 Wn.2d 486, 496 (1999). The

government bears the "heavy burden" of establishing an

exception to the warrant requirement by a preponderance of the

evidence. Parker, 139 Wn.2d at 496; U.S. v. Jeffers, 342 U.S.

48 (1951); U.S. v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987).



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In Terry v. Ohio, the United States Supreme Court

recognized a narrow exception to the general rule requiring

probable cause before a seizure is permitted. 392 U.S. 1

(1968). Under Terry, a police officer may briefly detain and

question an individual if the officer has a reasonable and

articulable suspicion of criminal activity, but the officer

must be able to point to "specific and articulable facts which,

taken together with rational inferences from those facts

reasonably warrant the intrusion." Terry, 392 U.S. at 21; See

also State v. Tocki, 32 Wn. App. 457, 460 (1982)

("investigative stops are carefully circumscribed--the

officer's suspicion must be based on specific, objective

facts."). The State bears the burden of establishing a lawful

basis for any Terry stop. State v. Alcantara, 79 Wn. App. 362,

365 (1995).

Under Washington law, the police may not detain a citizen

unless there is a substantial possibility that criminal conduct

has occurred or is about to occur. State v. Mendez, 137 Wn.2d

208, 223 (1999)(quoting State v. Kennedy, 107 Wn.2d 1, 6

(1986)); See also State v. Walker, 66 Wn. App. 622, 626 (1992).

"[C]ircumstances must be more consistent with criminal than

innocent conduct." State v. Mercer, 45 Wn. App. 769, 774

(1986).



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Moreover, the test is an objective one. Because there is

no "good faith" exception to the exclusionary rule in

Washington, the subjective beliefs of the officer are

irrelevant. State v. White, 97 Wn.2d 92 (1982); State v.

Sanchez, 74 Wn. App. 763 (1994), review denied, 125 Wn.2d 1022

(1995); State v. Trenidad, 23 Wn. App. 418 (1979).

The Home Has Heightened Protection

Especially evident is the fact that '[I]n no area is a citizen more entitled to his privacy than in his or her home. For this reason, the closer officers come to intrusion into a dwelling, the greater the constitutional protection." [Citation omitted]

State v. Ferrier, 136 Wn2d 103, 112.

Physical entry of the home is the chief evil which the wording which the Fourth Amendment is directed. …The Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not be reasonably crossed without a warrant.

Payton v. New York, 445 U.S. 573, 585, 590 (1980).

The heightened protection afforded state citizens against unlawful intrusion into private dwellings places an onerous burden upon the government to show a compelling need to act outside out warrant requirement.

State v. Chrisman, 100 Wn.2d 814, 822 (1984).

"...and the more significant the intrusion, the more cause

they must have to justify their suspicion." [Citations

omitted] State v. Tocki, at 460.Police Choose to Proceed Without a Warrant



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The police were on the scene for five (5) hours, giving

them ample opportunity to obtain a warrant. During that time,

they harassed and menaced Harmon Weitzman, but made no attempt

to secure a warrant (assuming any judge would be willing to

issue one to them). The Washington Supreme Court has warned

that “[w]here the police have ample time to obtain a warrant,

we do not look kindly on their failure to do so.” State v.

Leach, 113 Wn.2d 735, 744 (1989) (quoting United States v.

Impink, 728 F.2d 1228, 1231 (9th Cir. 1984).

The police, by and through their incident report are nunc

pro tunc, in effect, asking this court to issue a search

warrant for Zoe Weitzman – retroactively. Heitman's narrative

report is the affidavit in support. Would a reasonable, sober

judicial officer sign off on a warrant based on Heitman's

facts? Well, maybe.

After all, for 24 years the efforts of outraged parents

to have a grand jury investigate juvenile court judge Gary

Little’s sexual molestation of their children were

successfully blocked by Little’s fellow judges – until his

suicide in the courthouse. And after all, most of the 400

children who died in the mass murder/suicide at the Jonestown

compound in Guyana were placed in the custody of Jim Jones by

granted custody to Susan Smith over the prescient warnings of

the father. And when Susan apologized on national television

for drowning her babies and sending the community on a wild



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goose chase, the court lacked the same decency by refusing to

apologize to Mr. Smith. So yes, maybe the police could have

acquired a warrant – especially from Washington’s notoriously

corrupt courts, famous for ineptitude, tyranny, and making up

the law as it goes along. However, the police did not even

try. It may be their philosophy that “it’s better to apologize

than ask to permission.” They are betting this court will

grant them a warrant ex post facto – something long outlawed

by the supreme law of this land.

During the five hours police spent on Harmon’s property,

they had time and several options for obtaining a warrant:

RCW 13.32A.050 provides for the seizure of a child who

has run away from home. However, this source of authority is

unavailable to the officers in the instant case as its

legislation is intended for “parents and children who are in

conflict,” “adolescents,” “runaways” and children who

“endanger themselves.”

RCW 13.34.050 allows the court to “enter an order

directing a law enforcement officer, probation counselor, or

child protective services official to take a child into

custody” if they file an affidavit “setting forth specific

factual information evidencing reasonable grounds that the

child’s health, safety, and welfare will be seriously

endangered if not taken into custody[,] and at least one of



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the grounds set forth demonstrates a risk of imminent harm to

the child.” However, this source of a warrant is unavailable

to the officers as they cannot demonstrate imminent serious

danger.

RCW 26.44.050 allows an officer to seize a child without

a warrant if the danger to the child rises to the level

required by RCW 13.34.050 AND the child would be injured or

could not be taken into custody if it were necessary to first

obtain a court order. However, this option is unavailable to

the officers, as they cannot and do not allege these

obstacles.

Exceptions to the Warrant Requirement

The courts recognize routine child welfare checks as part

of the police’ community caretaking function, a narrowly

defined and jealously guarded exception to the requirement for

a warrant, akin to a Terry stop. Because of the risk of abuse,

the courts must be cautious in applying the community

caretaking exception to the warrant requirement. State v.

Acrey, 148 Wn.2d 738, 750 (2003). In order to avoid abuse of

the exception, community caretaking searches or seizures must

be strictly divorced from criminal investigations. “Even a

routine stop for a safety check, if it involves a ‘seizure’ by

detaining, must be necessary and strictly relevant to

performance of the noncriminal investigation.” Acrey, at 750.



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See also State v. Thompson , 151 Wn.2d 793, 802 (2004).

(Community caretaking function of police must be “divorced”

from a criminal investigation); Cady v. Dombrowski, 413 U.S.

433, 441 (U.S. 1973) (Community caretaking exception is

“totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a

criminal statue.”). The community caretaking function

exception may not be used as a pretext for a criminal

investigation. State v. Kinzy, 141 Wn2d 373, 394 (2000).

A community caretaking seizure is limited to the time it

takes officers to address the original reason for the stop.

“The noncriminal investigation must end when reasons for

initiating an encounter have been fully dispelled. Kinzy, at

395. See also State v. DeArman, 54 Wn.App 621 (1989). The

officers in the instant case did not have authority to

investigate traffic offences while investigating a child’s

welfare. They claimed to have been concerned about whether Zoe

was “safe”; when they determined she was safe, they were

obligated to end their seizure rather than pursue traffic

charges.We must 'cautiously apply the community caretaking function exception because of a real risk of abuse in allowing even well-intentioned stops to assist ... The noncriminal [community caretaking] investigation must end when reasons for initiating an encounter are fully dispelled. State v. Acrey, 148 Wn.2d 738, 750 (2003).

Failure to Transfer Title



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Last, Blatt is charged with failing to transfer title and

DWLS3. However, SMC 11.22.025 makes the “purchaser or

transferee” responsible for this task. The State v. Sanchez,

74 Wn. App. 763 (1994) City fails to allege Mr. Blatt is the

purchaser or transferee. Second, the right to drive without a

license is protected by law – which the jury will soon learn

whether the court likes it or not.

Blatt’s Day in Court

This will be Mr. Blatt’s “Day in Court”; an American court-

room is the one place Mr. Blatt’s First Amendment rights WILL

be protected, either by the judge or by Blatt himself. It is

rumored the judge will try to squelch Blatt when he presents

the foregoing information to the jury, and will sustain the

prosecutor’s objections to Blatt’s presenting to the jury the

law as it is actually written. This gives Mr. Blatt a chuckle.

How would the court figure it can stop him?

V. CONCLUSION

The police are now effectively asking this court to issue

a search warrant for Zoe Weitzman retroactively.

They seized Zoe Weitzman, along with Harmon Weitzman and

Leonard Blatt on January 21-22rd, 2011, based on a self-

arrogated “need” to know that Zoe was “safe” and “in this

state.” The police could not identify their authority or how

Zoe may have been “unsafe” or in the wrong state. They seized

the three without probable cause, as they lacked knowledge of

“specific and articulable facts” combined with “rational



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inferences” to believe that a crime was committed, which is

necessary for a Terry stop, or that Zoe was in “imminent

danger of serious injury,” which is necessary for a child

welfare check.

All evidence acquired subsequent to these seizures must

therefore be suppressed.

Respectfully submitted this 27th day of May, 2011.

_______________________________

Leonard Blatt



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TABLE OF AUTHORITIESRCW 10.79.040RCW 13.32A.050RCW 13.34.050RCW 26.44.050RCW 46.61.687 RCW 26.44.100(1)RCW 9.73.030 RCW 9A.08.020Adams v. State, 121 Ga. 163, 48 S.E. 910 (1904)Aguilar v. Texas, 378 U.S. 108 (1964)Ballard v. State, 43 Ohio 349Beaverts v. State, 4 Tex.App. 175Anderson v. Creighton, 483 U.S. 635 (1987)Cady v. Dombrowski, 413 U.S. 433 (1973)Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999)California v. Hodari D., 499 U.S. 621 (1991)Carnell v. Grimm, 74 F.3d 977 (9th Cir. 1996)Columbus v. Holmes, 152 N.W.2d 301 (Ohio App.)Coolidge v. New Hampshire, 403 U.S. 443 (l97l)Doe v. Lebbos, 348 F.3d 820 (9th Cir. 2003)Franklin, 118 Ga. 860, 45 S.E. 698 (1903)Green v. Kennedy, 48 N.Y. Rep. 653 (1871)Hicks v. Mathews, 266 S.W.2d 846 (Tex. 1954)Housh v. People, 75 111. 491Illinois v. Wardlow, 120 S.Ct. 673 (2000)John Bad Elk v. U.S., 177 U.S. 529Jones v. State, 26 Tex.App, 1Kilcup v. McManus, 64 Wn.2d 771 (1964)Lundstrom v. Alberquerque, 616 F.3d 1108 (2010)Mabe v. San Bernardino, 237 F.3d 1101 (9th Cir. 2001)Michigan v. Clifford, 464 U.S. 287 (1984)Mincey v. Arizona, 437 U.S. 385 (1978)Parker, 139 Wn.2d 496Payton v. New York, 445 U.S. 573 (1980)Plummer v. State, 136 Ind. 306Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997)Roberts, v. Dean, 187 So. 571 (Fla. 1939)Saucier v. Katz, 533 U.S. 202 (2001)Skidmore v. State, 43 Tex. 93Spinelli v. U.S., 393 U.S. 410 (1969)State v. Acrey, 148 Wn.2d 738 (2003)State v. Alcantara, 79 Wn.App. 362 (1995)State v. Allen, 138 Wn.App. 463 (2007)State v. Armenta, 134 Wn.2d 1 (1997)State v. Avila-Avina, 99 Wn.App. 9 (2000)State v. Barnes, 96 Wn.App. 217 (1999)State v. Bessette, 105 Wn.App. 793 (2001)State v. Boland, 115 Wn.2d 571



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State v. Christman, 100 Wn.2d 814 (1984)State v. Contreras, 92 Wn.App. 307 (1988)State v. Coyne, 99 Wn.App. 566 (2000)State v. DeArman, 54 Wn.App 621 (1989)State v. Ellwood, 52 Wn.App. 70 (1988)State v. Ferrier, 136 Wn.2d 103 (1998)State v. Gleason, 32 Kan. 245State v. Henry, 80 Wn.App. 544 (1995)State v. Hobart, 94 Wn.2d 437 (1980)State v. Holeman, 103 Wn.2d 426 (1985)State v. Kennedy, 107 Wn.2d 1 (1986)State v. Kinzy, 141 Wn.2d 373 (2000)State v. Ladson, 138 Wn.2d 343 (1999)State v. Leach, 113 Wn.2d 735 (1989)State v. Leach, 7 Conn. 452State v. Lennon, 94 Wn.App. 573, 138 Wn.2d 1014State v. Markgraf, 59 Wn.App. 509 (1990)State v. Mendez, 137 Wn.2d 208, 223 (1999)State v. Mercer, 45 Wn.App. 769 (1986)State v. Mobley, 240 N.C. 476, 83 S.E.2d 100State v. Morse, 156 Wn.2d 1 (2005)State v. Parker, 139 W.2d 486 (1999)State v. Pressley, 64 Wn.App. 591 (1992)State v. Richardson, 64 Wn. App. 693 (1992)State v. Robinson, 145 ME. 77, 72 ATL. 260State v. Rousseau, 241 P.2d 447State v. Rousseau, 40 Wa.2d, 92 (1952)State v. Sanchez, 74 Wn.App. 763 (1994)State v. Spartucus Williamson, 84 Wn.App 37 (1996)State v. Spaulding, 34 Minn. 3621State v. Sweet, 44 Wn.App. 226 (1986)State v. Thorn, 129 Wn.2d 347 (1996)State v. Tijerina, 61 Wn.App. 626 (1991)State v. Tocki, 32 Wn.App. 457 (1982)State v. Trenidad, 23 Wn.App. 418 (1979)State v. Walker, 136 Wn.2d 678 (1998)State v. Walker, 66 Wn.App. 622 (1992)State v. White, 97 Wn.2d 92 (1982)State v. Williams, 102 Wn.2d 733 (1984)State v. Young, 135 Wn.2d 498 (1998)State. v. Gum, 68 W.Va. 105, 69 S.E. 463 (1910)Swetnam v. W.F. Woolworth Co., 318 P.2d 364Terry v. Ohio, 392 U.S. 1 (1968)U.S. v. Carmichael, 489 F.2d 983 (7th Cir. 1973)U.S. v. Impink, 728 F.2d 1228 (9th Cir. 1984)U.S. v. Jeffers, 342 U.S. 48 (1951)U.S. v. Mendenhall, 446 U.S. 544 (1980)U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1987)State v. Thompson, 151 Wn.2d 793 (2004)Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000)



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Jan 21 - 48-Page Brief

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Transcript of Jan 21 - 48-Page Brief